Landowners Cleared to Sue Texas For Taking Their Trees
Barron, Adler, Clough & Oddo lawyers land a win at state’s high court
Super Lawyers online-exclusive
By Beth Taylor on August 15, 2024
Six years ago, the Texas Department of Transportation hired a contractor to clear trees and brush along Farm to Market Road 677 in Montague County, northwest of Dallas, as general maintenance to the state’s right-of-way. But Birgit and Mark Self, who live along that road, say more than 20 trees were removed from their private property.
“The Selfs’ fence was located a few feet inside their property line,” says Blaire Knox, who handled the case along with colleagues Nicholas Laurent and Andrew York. All three Austin attorneys practice eminent domain at Texas firm Barron, Adler, Clough & Oddo. “The TxDOT contractor and subcontractor, at TxDOT’s direction, cleared all the trees from fence to fence. This included numerous trees that were on the Selfs’ property and not within the TxDOT right-of-way.”
The state said it was not aware that those trees were on private property.
“TxDOT argued it could not be sued on the Selfs’ inverse-condemnation claim because it did not intend to take the Selfs’ trees,” says Knox.
But the state Supreme Court disagreed, ruling this spring that the couple’s inverse-condemnation suit may proceed to jury trial.
In its ruling, the state’s high court said, “the [state] constitution means what it says: the government must pay compensation when it intentionally takes private property for public use—even if the government mistakenly believes that it has a legal right to do so apart from its power of eminent domain.”
Laurent was involved in initial client meetings, legal research and briefing.
“The handling of this case was truly a team effort,” he says. “Our firm only handles eminent domain matters, and only on the landowner side of the docket.” Knox worked on research and briefing and drafted the original petition; York did research and briefing and argued the case at trial court and before the Texas Supreme Court.
TxDOT also argued that no state employee was physically operating the tree-removal equipment, which was handled by the subcontractor of a state contractor. TxDOT said, as a government entity, it was protected against the claim by the doctrine of sovereign immunity. But the trial court denied TxDOT’s Plea to the Jurisdiction and ruled that the case should proceed to a jury trial.
The case then went to the Second Court of Appeals in Fort Worth, which said TxDOT was immune from the Selfs’ inverse-condemnation claim because the agency’s acts were “not intentional in the sense required to support such a claim.” But the appellate court said the Selfs’ claim under the Texas Tort Claims Act could continue because, while TxDOT’s acts did not constitute “operation or use” of the equipment, a question remained over whether the subcontractors’ workers should be considered TxDOT employees under the law.
The state Supreme Court, on the other hand, ruled that the Selfs could not sue under Texas Tort Claims Act, since the workers were not TxDOT employees. However, it gave the green light to the couple’s inverse-condemnation suit, “because the evidence presented by the Selfs raised a fact issue regarding whether TxDOT intentionally destroyed the trees on their property for public use,” says Laurent.
York says the ruling has broad significance. “The Texas Constitution provides that the government must pay ‘adequate compensation’ where a person’s property is ‘taken, damaged, or destroyed for or applied to public use,’” he says. “Prior to the Self opinion, Texas courts had required injured property owners to prove that the government intended to harm or damage specific private property. The Self opinion clarifies—in the favor of property owners—the intent standard for inverse-condemnation claims.”
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